A Group Conversation with Eben Moglen, Part I

How GPL 3 Relates to Non-Lawyers

May 17, 2007

By
Brian Proffitt

Eben Moglen is one of those people in the community that delivers his message in a clear, concise way that never fails to capture the attention of his audiences. The Founding Director of the Software Freedom Law Center gave two talks at last week's Red Hat Summit, the second being more of a Q&A session than a formal presentation.

Although this talk was before the recent round of allegations from Microsoft, Moglen's topics were still very much germaine to the Linux community. In Part I, Moglen discusses how the GPL3 relates to different segments of the community, and ponders the structure of the Linux kernel project and how a hypothetical license change might apply.

Eben Moglen: Let me expand a little bit on a couple of comments made earlier in the course of the Conference and just post up a little bit of news. As of this week, I think I see smooth sailing directly to a last call draft at the end of this month and the option of the license in a formal sense at the end of next, so I think the schedule is at this point fairly firm. I see very few matters that still need significant work before we can go to a last call draft. I think we've gotten about a dozen places where there's minor work needing to be done and I think we have two or three places where something a little more substantial needs to be completed. But I think the relevant further modifications are on that scale. So the draft published--this discussion draft three at the end of March, is very close to the last call draft, which means I'm not in the position of having to describe that which is not public in any meaningful way. In response to questions I should be able to give answers which contain information about what is the final license in almost every respect.

I want to call attention to... the question of the difference between those elements of license change which are important to lawyers and those elements of license change which are important to other people. And I want to concentrate here on other people in two senses. With respect to engineers the transition to GPL3 ought to mean in practice two things. For those engineers working outside large patent holding enterprises there should be more opportunity to feel sure that you can work on GPL code net of patent annoyances by those people who have also touched the code It should be possible in other words to believe yourselves part of the community of people who do not themselves ever engage in any kind of patent shenanigans within the community. With respect to outsiders, you will have at least some understanding of the mechanism whereby the community means to defend itself against outside patent digression on the surface of the license. So it ought to be at least possible to understand for engineers worried about this global patent whatever it is and how does it affect me? GPL3 ought to come as meaningful, helpful news you can use with respect to your role against the patent thread if you are modifying, reshaping, copying, using, deploying, assisting others to modify copy shape or deploy GPL code. That's the first thing I think that the license means to engineers.

The second thing I think the license means to engineers that it hasn't meant before is if you are building consumer devices, stuff intended for people to use in their ordinary daily lives, in their houses and their cars and their pockets and their schools--even if it's stuff which also is going to be used by businesses, if somebody wants to lock that stack down, so that the GPL code in there can modified by you after it has hit the field but cannot be modified by the consumer then you have a new class of problem to alert the business about. GPL3 wants one rule to be followed; if your product can be modified after it is in the hands of a consumer doing ordinary light stuff with it, and if you have the ability to modify code in there which is under GPL, or if you have given some other third party the right to modify code in there that's under GPL then the consumer ought to have the same degree of right that you have reserved or that you have passed to a third party.

If you're making consumer stuff that nobody can change after it is in the hands of the consumer--great. And if you're making stuff that everybody has equal access to change and hack around with--great, too. But if the way you're conveying consumer devices is to lock down the GPL code in there so that some people have a right to modify it and some doesn't include in the guy to whom it was sold that's a problem and you need to tell people about it. Those are from my points of view the two major areas in which GPL3 conveys news you can use to engineers making things.

The other bunch of people I want to talk about the license's effect on are people who license patent claims and other intellectual property, not necessarily lawyers typically involved in software licensing. In that world, GPL3 also brings some change and the change is when people modify code, when they contribute to GPL programs they're making a statement about patent safety to everybody. The statement they're making is when this code leaves my hands, whatever patent claims my employer or I have that read on the code as it is leaving my hands, we are freeing up for use in this program or works based on this program by anybody who gets the program or the modified version. So when we contribute to a GPL program we are doing something which has an effect in forbearing application of our patent claims to that code in other people's hands or to descendants of this code in other people's hands. That's a significant commitment to patent rights. It's not a more than is necessary in order to be sure that there will be no betrayals inside the community. It's what it takes to be sure that there will be no betrayals inside the community. Moreover, if you distribute GPL3 code that you did not modify then the person who gets code from you in that distribution is getting a promise that you will not enforce patents against them. If you discover that you have patent claims that lead on some code that you have been distributing under GPL3 and you want to reserve the right to enforce those patent claims you have to stop distributing. You can't be giving people stuff that practices your claims under GPL3 while at the same time reserving the idea that you might sue to enforce that patent against that work or a descendant of the work. But if you discover that you are inadvertently distributing something that practices your patent claims you can just stop and when you cease distribution you cease to be subject to that limitation.

So there are two classes of activity under GPL3 that affect the interests of those who license patent claims within the enterprise. They want to know if distribution is going on what patent claims in the house might lead other distributed software or that it's not worth searching. And they have a call-back if they have a problem; they can cease distribution. With respect to the code, which is contributed to GPL3 where it's on the other hand they need to make a permanent commitment when the contribution goes out the door. They need to have thought about whether it is appropriate for this contribution to be made and they need to decide whether they are prepared to allow those patent claims to be used by those who may or have made modified versions of the work as well employ the work itself.

One of the consequences of this is we believe that certain highly patented enterprises will decide to be a little more careful how they contribute to GPL-works. We think this is appropriate. Even if it means that some enterprises with a lot of patents will think more carefully about the business case before submitting simple patches to code we think it is appropriate for people who are making major architected contributions should consider their patent portfolios. We want to avoid inadvertent employments of people's patent claims which might result in friction within the community down the road. It is good to make people think about what they're doing before they put it in.

But there will be consequences for GPL3 and then the licensing executives and so one of the things we need to be prepared for is to answer the questions of licensing executives for why the software license works the way it does may not be so clear or the value of the GPL3 may not be so clear and we need to be prepared to explain what is and what is not the rule about this from the perspective of the licensing executive. I will at the Software Freedom Law Center admit documents explaining these questions for these communities. They're not exactly the lawyers and they're not exactly the engineers. But they are relevant constituencies who need to understand.

So I've tried in those few minutes to suggest ways that we might think about what GPL3 means if we are not the general counsel's office. The general counsel's office has largely been involved in this discussion, if it cared, and explaining that activity and what it means to lawyers, which represents the activity and carefully going through legal language and crossing it out isn't a fit subject for nine in the morning in such a place anyway. I think the best thing to do as I said at the beginning is to stop there and take questions. So, what do you want?